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Beslan school siege – some extracts from the judgment

Today’s Chamber case (here) has been in the news today, and rightly so given the countless tragic human stories behind an event which left 180 children (plus many others) dead.

The purpose of this short post is to highlight certain features of the judgment and their legal significance (I do not claim to have read the whole judgment, but have scanned over it, and what follows is, of course, non-exhaustive).

A first point, aside from the actual judgment itself, is to note that one of the groups of applicants were represented by EHRAC/ Memorial Human Rights Centre (London/ Moscow). We may ponder on the significance of that as we read about Russian crack downs on NGOs working in the human rights field (see, eg, here).

Second, anyone doubting the level of detail and analysis of the Strasbourg Court’s judgment may care to peruse a judgment that is over 150 pages long.

Third, for ECHR lawyers one of the more significant aspects of the case seems to be summed up in what Judge Pinto de Albuquerque observed in his Separate Opinion:

[1] … I am satisfied that the majority remained faithful to the Court’s standards on the use of lethal force in large-scale anti-terrorist operations, dealing with them as with any other law-enforcement operation and refusing to apply the paradigm of the law on armed conflicts to them. I am particularly satisfied that the Article 2 strict criteria of “absolute necessity” and lawfulness were applied to large-scale anti-terrorist operations (see paragraph 596 of the judgment). In other words, in interpreting Article 2, the Court clearly refused to yield to the temptation of reading into the Convention the standards of the law on armed conflicts with a view to lowering the level of protection of human rights enshrined in the Convention [the Judge maintains that this is what the Court did in the case of Hassan v UK regarding Article 5 of the Convention].

[7] … even in the face of the most egregious form of terrorism, a large-scale attack on a school which left more than 330 people dead, the Court stood by its principles on the interpretation of Article 2 of the Convention…

Fourth, indeed the factual background to this case was an appalling act of terrorism, and on a large-scale. The Court has always been highly conscious of such contexts (when relevant) in its case law, and, therefore, the need to adopt a realistic approach to its scrutiny and standard setting. This is in evidence in para 481 of the judgment:

[481]. As an introduction to the examination of the complaints brought under Article 2 of the Convention, the Court confirms that it is acutely conscious of the difficulties faced by the modern States in the fight against terrorism and the dangers of hindsight analysis (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 212-13, ECHR 2011 (extracts)). The Russian authorities, in particular, have been confronted in the past few decades with the separatist movements in the North Caucasus – a major threat to national security and public safety. As the body tasked with supervision of the human rights obligations under the Convention, the Court would need to differentiate between the political choices made in the course of fighting terrorism, that remain by their nature outside of such supervision, and other, more operational aspects of the authorities’ actions that have a direct bearing on the protected rights. The absolute necessity test formulated in Article 2 is bound to be applied with different degrees of scrutiny, depending on whether and to what extent the authorities were in control of the situation and other relevant constraints inherent in operative decision‑making in this sensitive sphere (ibid., §§ 214-16).

Fifth, a significant aspect of the ruling was that the Court was unanimous that the circumstances were such that the Russian authorities had a positive duty to protect, and that it was engaged on the facts. (In language that will be familiar to Convention lawyers, and which has been part of the Strasbourg case for many years, the Court was satisfied that ’it [was] established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of identified individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’, see para 482).

Sixth, against the above backdrop, a relatively novel feature of the case was that the Court found – unanimously – a violation of Article 2 of the Convention. In effect, this was a violation based on the failure of the Russian authorities to take appropriate steps to frustrate or to try to prevent the hostage crisis occurring in the first place, in circumstances when they should have reasonably been able to take such steps. As the unanimous Court put it:

[491] To conclude, the Court finds it established that at least several days in advance the authorities had sufficiently specific information about a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September. The intelligence information likened the threat to major attacks undertaken in the past by the Chechen separatists, which had resulted in heavy casualties. A threat of this kind clearly indicated a real and immediate risk to the lives of the potential target population, including a vulnerable group of schoolchildren and their entourage who would be at the Day of Knowledge celebrations in the area. The authorities had a sufficient level of control over the situation and could be expected to undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate this risk. Although some measures were taken, in general the preventive measures in the present case could be characterised as inadequate. The terrorists were able to successfully gather, prepare, travel to and seize their target, without encountering any preventive security arrangements. No single sufficiently high-level structure was responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective containment of the threat and communication with the field teams.

In reaching this unanimous conclusion, we observe that the Court once again stressed that it was conscious of the terrorist context:

[492] The Court reiterates that in the preparation of responses to unlawful and dangerous acts in highly volatile circumstances, competent law-enforcement services such as the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated, and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010). This is especially so in respect of counter-terrorist activity, where the authorities often face organised and highly secretive networks, whose members are prepared to inflict maximum damage to civilians, even at the cost of their own lives. In the face of an urgent need to avert serious adverse consequences, whether the authorities choose to use a passive approach of ensuring security of the potential targets or more active intervention to disrupt the menace, is a question of tactical choice. However, such measures should be able, when judged reasonably, to prevent or minimise the known risk. With regard to the above arguments, the Court finds that in the case at issue the Russian authorities failed to take such measures.

Seventh, the Court (by 5 to 2) also found a violation of Article 2 on the basis that the Russian authorities had used overwhelming and inappropriate levels of force when they stormed the school (in reaction to sudden and powerful explosions inside, see para 606), within the context of an ill-prepared on-site command regime/ planning framework. On this see paras 606-609. In this connection, the Court’s overall approach, as set out in para 609 may be worth noting.

[609] As in the Isayeva case (cited above), the Court finds that “the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.” It is not for the Court, with detached reflection, to substitute its own opinion of the situation for that of security officers who were required to intervene to save human lives, in an extremely tense situation, facing armed and dangerous individuals. While errors of judgment or mistaken assessments, unfortunate in retrospect, will not in themselves entail responsibility under Article 2, such use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary in the circumstances (see, among other authorities, Dimov and Others v. Bulgaria, no. 30086/05, § 78, 6 November 2012).

The Court made some important decisions under Article 46(1) – see paras 638-641. As the Council of Europe’s web site puts it ‘the Court indicated the need for a variety of measures aimed at drawing lessons from the past, raising awareness of applicable legal and operational standards, and deterring similar violations in the future. It also held that the future requirements of the pending investigation into the incident must be determined with regard to the court’s conclusions about investigation’s failures to date’.

Lastly, I would not want to end this post without stating that I feel a sense of guilt as I, in my luxurious academic setting, comment on the legal aspects of a case which concerned the most appalling human suffering. At this Eastertime I will be thinking of the people of Beslan, the many lives lost and the enduring misery for those concerned.